Dylan Chocla

The plaintiff, a shell company representing substantial commercial creditors, conceded it lacked sufficient assets to cover the defendants' costs if unsuccessful in three complex commercial actions seeking over $150 million in damages.

The plaintiff also failed to demonstrate impecuniosity.

The defendants sought over $10 million in security for costs.

The court, finding the merits of the underlying claims neutral for the purpose of the motion, determined it was fair and just for the plaintiff to post security.

An initial aggregate sum of $1.6 million was ordered to be paid into court, staged across the three actions, with further amounts to be determined later.

The defendant, KPMG LLP, moved for an order relieving former directors of the plaintiff, Cash Store, from a contractual obligation not to cooperate with KPMG in the ongoing litigation.

This obligation was contained in an undisclosed side letter agreement that formed part of a global settlement under the CCAA.

The court found that because the side letter was not disclosed to creditors, KPMG, or the court during the CCAA plan approval process, Cash Store lacked the authority to enter into the impugned term.

Consequently, the court held that the prohibition against communicating with KPMG was not binding on the former directors, and the motion was granted.

The Receiver moved for an order approving the sale of the debtor's mining assets to the applicant.

A third party opposed the sale, arguing its gross overriding royalty (GOR) rights constituted an interest in land that could not be extinguished by a vesting order.

The court applied the Dynex test and found the GORs were merely contractual rights to share in revenues, not an interest in land.

The court granted the vesting order, extinguishing the GORs upon payment of their fair appraised value.

The third party's cross-motion for a storage lien under the Repair and Storage Liens Act was dismissed.